Papers of Dr. James McHenry on the Federal Convention of 1787. (1)

Dr. James McHenry

Philadelphia 14 May 1787.

May 14, 1787

Convention.

On the 25th seven states being represented viz. New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina and South Carolina, George Washington was elected (unanimously) president of the convention.

The convention appoint a committee to prepare and report rules for conducting business which were reported, debated, and in general agreed to on the 28th.

29.

Governor Randolph opened the business of the convention. (2) He observed that the confederation fulfilled none of the objects for which it was framed. 1st. It does not provide against foreign invasions. 2dly. It does not secure harmony to the States. 3d. It is incapable of producing certain blessings to the States. 4. It cannot defend itself against encroachments. 5th. It is not superior to State constitutions.

1st. It does not provide against foreign invasion. If a State acts against a foreign power contrary to the laws of nations or violates a treaty, it cannot punish that State, or compel its obedience to the treaty. It can only leave the offending State to the operations of the offended power. It therefore cannot prevent a war. If the rights of an ambassador be invaded by any citizen it is only in a few States that any laws exist to punish the offender. A State may encroach on foreign possessions in its neighbourhood and Congress cannot prevent it. Disputes that respect naturalization cannot be adjusted. None of the judges in the several States under the obligation of an oath to support the confederation, in which view this writing will be made to yield to State constitutions.

Imbecility of the Confederation equally conspicuous when called upon to support a war. The journals of Congress a history of expedients. The States in arrears to the federal treasury from the ------------ to the

What reason to expect that the treasury will be better filled in future, or that money can be obtained under the present powers of Congress to support a war. Volunteers not to be depended on for such a purpose. Militia difficult to be collected and almost impossible to be kept in the field. Draughts stretch the strings of government too violently to be adopted. Nothing short of a regular military force will answer the end of war, and this only to be created and supported by money.

2. It does not secure harmony to the States. It cannot preserve the particular States against seditions within themselves or combinations against each other. What laws in the confederation authorise Congress to intrude troops into a State. What authority to determine which of the citizens of a State is in the right, The supporters or the opposers of the government, Those who wish to change it, or they who wish to preserve it.

No provision to prevent the States breaking out into war. One State may as it were underbid another by duties, and thus keep up a State of war.

3. Incapable to produce certain blessings. The benefits of which we are singly incapable cannot be produced by the union. The 5 per cent impost not agreed; a blessing congress ought to be enabled to obtain.

Congress ought to posses[s] a power to prevent emissions of bills of credit.

Under this head may be considered the establishment of great national works- the improvement of inland navigation-agriculture-manufactures-a freer intercourse among the citizens.

4. It cannot defend itself against incroachments. Not an animated existence which has not the powers of defence. Not a political existence which ought not to possess it. In every Congress there has been a party opposed to federal measures. In every State assembly there has been a party opposed to federal measures. The States have been therefore delinquent. To What expedient can congress resort, to compel delinquent States to do what is right. If force, this force must be drawn from the States, and the States may or may not furnish it.

5. Inferior to State constitutions. State constitutions formed at an early period of the war, and by persons elected by the people for that purpose. These in general with one or two exceptions established about 1786 [sic]. The confederation was formed long after this, and had its ratification not by any special appointment from the people, but from the several assemblies. No judge will say that the confederation is paramount to a State consti[tu]tion.

Thus we see that the confederation is incompetent to any one object for which it was instituted. The framers of it wise and great men; but human rights were the chief knowle[d]ge of the times when it was framed so far as they applied to oppose Great Britain. Requisitions for men and money had never offered their form to our assemblies. None of those vices that have since discovered themselves were apprehended. Its defects therefore no reflextion [sic] on its contrivers.

Having pointed out its defects, let us not be affraid to view with a steady eye the perils with which we are surrounded. Look at the public countenance from New Hampshire to Georgia. Are we not on the eve of war, which is only prevented by the hopes from this convention.

Our chief danger arises from the democratic parts of our constitutions. It is a maxim which I hold incontrovertible, that the powers of government exercised by the people swallows [sic] up the other branches. None of the constitutions have provided sufficient checks against the democracy. The feeble Senate of Virginia is a phantom. Maryland has a more powerful senate, but the late distractions in that State, have discovered that it is not powerful enough. The check established in the constitution of New York and Massachusets is yet a stronger barrier against democracy, but they all seem insufficient.

He then submitted the following propositions which he read and commented upon seriatim. (3). . .

The convention resolved that on to-morrow, the convention resolve itself into a committee of the whole, to take into consideration the state of the american union. (4)

It was observed by Mr. Hamilton before adjourning that it struck him as a necessary and preliminary inquiry to the propositions from Virginia whether the united States were susceptible of one government, or required a separate existence connected only by leagues offensive and defensive and treaties of commerce. (5)

May 30.

Mr. Randolph wished the house to dissent from the first proposition on the paper delivered in to the convention in order to take up the following

1st. That a union of the States merely federal will not accomplish the object proposed by the articles of confederation, namely "common defence, security of liberty, and general welfare."

2. That no treaty or treaties between the whole or a less number of the States in their sovereign capacities will accomplish their common defence, liberty, or welfare. (6)

3. That therefore a national government ought to be established consisting of a supreme legislature, judi[c]iary and executive.

On a question taken on the last proposition after various attempts to amend it, the same was agreed to. For it, Massachusetts, Pennsylv., Delaware, Virginia, N. Carolina and S. Carolina-against it Connecticut. New York divided.

[The proceedings of May 30, up to this point, are set forth in much more detail in a loose folio sheet, in Dr. McHenry's handwriting, which was found lying in the book containing the main body of his notes. It seems best to insert this paper at this point. It reads as follows:

May 30th.

1st resolution from Mr. Randol[ph]

Mr. R. wishes to have that resol. dissented to. The resol. postponed to take up the following:

1st. That a union of the States merely foederal will not accomplish the object proposed by the articles of confederation, namely, "common defence, security of liberty, and general welfare".

Mr. C. Pinkney wishes to know whether the establishment of this Resolution is intended as a ground for a consolidation of the several States into one.

Mr. Randol[ph] has nothing further in contemplation than what the propositions he has submitted yesterday has [sic] expressed.

2. Resolved that no treaty or treaties between the whole or a less number of the States in their sovereign capacities will accomplish their common defence, liberty or welfare.

3. Resolved therefore that a national governmen[t] ought to be established consisting of a supreme legislature, judiciary and executive.

Mr. Whythe [sic] (7) presumes from the silence of the house that they gentn. are prepared to pass on the resolution and proposes its being put.

Mr. Butler-does not think the house prepared, that he is not. Wishes Mr. Randolph to shew that the existence of the States cannot be preserved by any other mode than a national government.

Gen. Pinkney-Thinks agreeing to the resolve is declaring that the convention does not act under the authority of the recommendation of Congress.

The first resolution postponed to take up the 3d. viz-Resolved that a national government ought to be established consisting of a supreme legislature, judiciary and executive.

1787, 21 Febry. Resolution of Congress. (8)

Resolved that in the opinion of Congress it is expedient that on the 2d Monday of May next a convention of delegates who shall have been appointed by the several States to be held at Philada. for the sole and expres[s] purpose of revising the articles of confederation, and reporting to Congress and the several legislatures, such alterations and provisions therein as shall when agreeed [sic] to in Congress, and confirmed by the States, render the foederal constitution, adequate to the exigencies of government and the preservation of the union."

Mr. Randolph (9) explains the intention of the 3d Resolution. Repeats the substance of his yesterdays observations. It is only meant to give the national government a power to defend and protect itself. To take therefore from the respective legislatures or States, no more sover[e]ignty than is competent to this end.

Mr. Dickinson. Under obligations to the gentlemen who brought forward the systems laid before the house yesterday. Yet differs from the mode of proceeding to which the resolutions or propositions before the Committee lead. Would propose a more simple mode. All agree that the confederation is defective all agree that it ought to be amended. We are a nation altho' consisting of parts or States-we are also confederated, and he hopes we shall always remain confederated. The enquiry should be-

1. What are the legislative powers which we should vest in Congress.

2. What judiciary powers.

3. What executive powers.

We may resolve therefore, in order to let us into the business. That the confederation is defective; and then proceed to the definition of such powers as may be thought adequate to the objects for which it was instituted.

Mr. E. Gerry. Does not rise to speak to the merits of the question before the Committee but to the mode.

A distinction has been made between a federal and national government. We ought not to determine that there is this distinction for if we do, it is questionable not only whether this convention can propose an government totally different or whether Congress itself would have a right to pass such a resolution as that before the house. The commission from Massachusets empowers the deputies to proceed agreeably to the recommendation of Congress. This the foundation of the convention. If we have a right to pass this resolution we have a right to annihilate the confederation.

Proposes-In the opinion of this convention, provision should be made for the establishment of a foederal legislative, judiciary, and executive.

Governeur Morris. Not yet ripe for a decision, because men seem to have affixed different explanations to the terms before the house. 1. We are not now under a foederal gover[n]ment. 2. There is no such thing. A foederal government is that which has a right to compel every part to do its duty. The foederal gov. has no such compelling capacities, whether considered in their legislative, judicial or Executive qualities.

The States in their appointments Congress in their recommendations point directly to the establishment of a supreme government capable of "the common defence, security of liberty and general welfare.

Cannot conceive of a government in which there can exist two supremes. A federal agreement which each party may violate at pleasure cannot answer the purpose. One government better calculated to prevent wars or render them less expensive or bloody than many.

We had better take a supreme government now, than a despot twenty years hence- for come he must.

Mr. Reed, Genl. [Pinckney] 2dng. proposes-In order to carry into execution the design of the States in ------ this meeting (10) and to accomplish the objects proposed by the confederation resolved that A more effective government consisting of a legislative judiciary and executive ought to be established.

In order to carry into execution.

Mr. R. King (11)-The object of the motion from Virginia, an establishment of a government that is to act upon the whole people of the U. S.

The object of the motion from Delaware seems to have application merely to the strengthening the confederation by some additional powers.

Mr. Maddison-The motion does go to bring out the sense of the house-whether the States shall be governed by one power. If agreed to it will decide nothing. The meaning of the States that the confed. is defect. and ought to be amended. In agreeing to the (12) . . . ]

The Committee then proceeded to consider the 2 Resolution in Mr. Randolphs paper viz

That the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution or to the number of free inhabitants as the one or the other rule may seem best in different cases.

As this gave the large States the most absolute controul over the lesser ones it met with opposition which produced an adjourn ment without any determination.

The Commitee of the whole to sit to-morrow.

31 May.

Mr. Randolph motioned to take into consideration, vz. That the national legislature ought to consist of two branches.

agreed to.

Part of the 4 resolution moved, vz. That the members of the first branch ought to be elected by the people of the several States.

6 States aff. 2 neg. 2 divided.

5 Reso. so far as follows taken up vz. That the members of the second branch of the national legislature ought to be elected by those of the first out of a proper number of persons nominated by the individual legislatures.

Neg. 7. affirm 3. aff. Mass. S. C. Virginia. (13)

Motioned vz.

That each branch ought to possess the right of originating acts.

agreed.

That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the confedn. and moreover to legislate in all cases to which the separate States are incompetent. (14)

agreed.

or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation.

agreed.

To negative all laws passed by the several States contravening in the opinion of the national legislature the articles of union, (or any treaty subsisting under the authority of the union, added by Dr. Franklin).

agreed.

And to call forth the force of the union against any member of the union failing to fulfil its duty under the articles thereof. (15)

postponed.

Mr. E. Gery thought this clause "ought to be expressed so as the people might not understand it to prevent their being alarmed".

This idea rejected on account of its artifice, and because the system without such a declaration gave the government the means to secure itself.

June 1st

Recd an express from home that my brother lay dangerously sick in consequence of which I set out immediately for Baltimore.

Left Baltimore 2 August

August 4th

Returned to Philada. The committee of Convention ready to report. Their report in the hands of Dunlop the printer to strike off copies for the members. (16)

Augt. 6

Convention met. present 8 States. Report delivered in by Mr. Rutledge. read. Convention adjourned till to-morrow to give the members an opportunity to consider the report.

Proposed to Mr. D. Carrol, Mr. Jenifer, Mr. Mercer and Mr. Martin, (17) to meet to confer on the report, and to p[r]epare ourselves to act in unison.

Met at Mr. Carrolls lodgings in the afternoon. I repeated the object of our meeting, and proposed that we should take the report up by paragraphs and give our opinions thereon. Mr. Mercer wished to know of me whether I thought Maryland would embrace such a system. I told him I did not know, but I presumed the people would not object to a wise system. He extended this idea to the other gentlemen. Mr. Martin said they would not; That he was against the system, that a compromise only had enabled its abettors to bring it into its present stage-that had Mr. Jenifer voted with him, things would have taken a different turn. Mr. Jenifer said he voted with him till he saw it was in vain to oppose its progress. I begged the gentlemen to observe some order to enable us to do the business we had convened upon. I wished that we could be unanimous-and would make a proposition to effect it. I would join the deputation in bringing on a motion to postpone the report, to try the affections of the house to an amendment of the confederation without altering the sovereignty of suffrage; which failing we should then agree to render the system reported as perfect as we could, in the mean while to consider our motion to fail and proceed to confer upon the report agreeably to the intention of our meeting. I. E. That we should now and at our future meetings alter the report to our own judgement to be able to appear unanimous in case our motion failed.

Mr. Carrol could not agree to this proposition, because he did not think the confederation could be amended to answer its intentions. I thought that it was susceptable of a revision which would sufficiently invigorate it for the exigencies of the times. Mr. Mercer thought otherwise as did Mr. Jenifer. This proposition to conciliate the deputation was rejected.

Mr. Martin in the course of the conversation observed that he was against two branches-that we [sic] was against the people electing the representatives of the national government. That he wished to see the States governments rendered capable of the most vigorous exertions, and so knit together by a confederation as to act together on national emergencies.

Finding that we could come to no conclusions I recommended meeting again to- morrow, for unless we could appear in the convention with some degree of unanimity it would be unneccessary to remain in it, sacrificing time and money without being able to render any service. They agreed to meet to-morrow, except Mr. Martin who said he was going to New York and would not be back till monday following. (18)

It being of importance to know and to fix the opinions of my colleagues on the most consequential articles of the new system, I prepared the following propositions, for that purpose viz. (19)

Art. IV. Sec. 5. Will you use your best endeavours to obtain for the senate an equal authority over money bills with the house of representatives.?

Art. VII. Sect. 6. Will you use your best endeavours to have it made a part of the system that "no navigation act shall be passed without the assent of two thirds of the representation from each State?

In case these alterations cannot be obtained will you give your assent to the 5 sect. of the IV article and 6 sect. of the VII. article as they stand in the report?

Will you also, (in case these alterations are not obtained) agree that the ratification of the conventions of nine States shall be sufficient for organizing the new constitutions?

N. B. Saw Mr. Mercer make out a list of the members names who had attended or were attending in convention with for and against marked opposite most of them- asked carelesly what question occasioned his being so particular upon which he told me laughing that it was no question but that those marked with a for were for a king. I then asked him how he knew that to which he said no matter the thing is so. I took a copy with his permission, and Mr. Martin seeing me about it asked What it was. I told him, in the words Mr. Mercer had told me, when he begged me to let him copy the list which I did. (20)

Augt. 7.

Mr. Martin set out for New York on this day so we were without his concurrence in the propositions.

Shewed these propositions to Mr. Carroll Mr. Jenifer and Mr. Mercer in convention. They said in general terms that they believed they should accord with them. I observed to Mr. Carrol[l] that we would meet again in the evening and talk over the subject. (21)

The business of the Convention proceeded.

The preamble or caption and the 1. and 2. article passed without debate, the 3 article was amended so as to leave it with the legislature to appoint after the first meeting, the day for the succeeding meetings.

The IV article gave rise to a long debate, respecting the qualifications of the electors.

Mr. Dickinson contended for confining the rights of election in the first branch to free holders. No one could be considered as having an interest in the government unless he possessed some of the soil.

The fear of an aristocracy was a theoretical fiction. The owners of the soil could have no interest distinct from the country. There was no reason to dread a few men becoming lords of such an extent of territory as to enable them to govern at their pleasure.

Governeur Morris-thought that wise men should not suffer themselves to be misguided by sound. If the suffrage was to be open to all freemen-the government would indubitably be an aristocracy. The system was a system of Aristocracy. It put it in the power of opulent men whose business created numerous dependents to rule at all elections. Hence so soon as we erected large manufactories and our towns became more populous-wealthy merchants and manufacturers would elect the house of representatives. This was an aristocracy. This could only be avoided by confining the suffrage to free holdcrs. Mr. Maddison supported similar sentiments.

The old ideas of taxation and representation were opposed to such reasoning. (22) Dr. Franklin spoke on this occasion. He observed that in time of war a country owed much to the lower class of citizens. Our late war was an instance of what they could suffer and perform. If denied the right of suffrage it would debase their spirit and detatch them from the interest of the country. One thousand of our seamen were confined in English prisons-had bribes offered them to go on board English vessels which they rejected. An English ship was taken by one of our men of war. It was proposed to the English sailors to join ours in a cruise and share alike with th[e]m in the captures. They immediately agreed to the proposal. This difference of behavior arises from (23) the operation of freedom in America, and the laws in England. One British Statute excluded a number of subjects from a suffrage. These immediately became slaves. At th[r]ee o'clock the house adjourned without coming to any issue.

At five o'clock in the evening I went to Mr. Carrolls lodging to confer with my colleagues on the points I had submitted to their consideration. I found Mr. Carroll alone when We entered upon their merits. He agreed with me that the deputation should oppose a resolute face to the 5 sect of the IV article, (24) and that they ought to reject it. He appeared fully sensible of its tendency-That lodging in the house of representatives the sole right of raising and appropriating money, upon which the Senate had only a negative, gave to that branch an inordinate power in the constitution, which must end in its destruction. That without equal powers they were not an equal check upon each other-and that this was the chance that appeared for obtained [sic. obtaining?] an equal suffrage, or a suffrage equal to wh[a]t we had in the present confedn.

We accorded also that the deputation should in no event consent to the 6 sect. of VII article. (25) He saw plainly that as a quorum consisted of a majority of the members of each house-that the dearest interest[s?] of trade were under the controul of four States or of 17 membe[r]s in one branch and 8 in the other branch. (26)

We adverted also to the 1st sect of the VII article which enabled the legislature to lay and collect taxes, duties, imposts and excises, and to regulate commerce among the several States. We almost shuddered at the fate of the commerce of Maryland should we be unable to make any change in this extraordinary power.

We agreed that our deputation ought never to assent to this article in its present form or without obtaining such a provision as I proposed.

I now begged his particular attention to my last proposition. (27) By the XXII article we were called upon to agree that the system should be submitted to a convention chosen in each State under the recommendation of its legislature. And that a less number of conventions than the whole agreeing to the system should be sufficient to organise the constitution.

We had taken an oath to support our constitution and frame of government. We had been empowered by a legislature legally constituted to revise the confederation and fit it for the exigencies of government, and preservation of the union. Could we do this business in a manner contrary to our constitution? I feared [(Note by McHenry.) This was said first I thought-then I feared (28)] we could not. If we relinquished any of the rights or powers of our government to the U. S. of America, we could no otherwise agree to that relinquishment than in the mode our constitution prescribed for making changes or alterations in it.

Mr. Carrol[l] said he had felt his doubts respecting the propriety of this article as it respected Maryland; but he hoped we should be able to get over this difficulty.

Mr. Jenifer now came in to whom Mr. Carroll repeated what we had said upon my propositions and our determinations. Mr. Jenifer agreed to act in unison with us but seemed to have vague ideas of the mischiefs of the system as it stood in the report.

I wished to impress him with the necessity to support us, and touched upon some popular points.

I suggested to him the unfavorable impression it would make upon the people on account of its expence. An army and navy was [sic] to be raised and supported, expensive courts of judicature to be maintained, and a princely president to be provided for etc. That it was plain that the revenue for these purposes was to be chiefly drawn from commerce. That Maryland in this case would have this resource taken from her, without the expences of her own government being lessened. That what would be raised from her commerce and by indirect taxation would far exceed the proportion she would be called upon to pay under the present confederation.

An increase of taxes, and a decrease in the objects of taxation as they respected a revenue for the State would not prove very palatable to our people, who might think that the whole objects of taxation were hardly sufficient to discharge the States obligations.

Mr. Mercer came in, and said he would go with the deputation on the points in question. He would wish it to be understood however, that he did not like the system, that it was weak-That he would produce a better one since the convention had undertaken to go radically to work, that perhaps he would not be supported by any one, but if he was not, he would go with the stream.

August 8.

The 2 sect. of the IV. article was amended to read 7 insted of three years. It was proposed to add to the section "at least one year preceding his election". negatived. Maryland divided. M[ess]rs. Mercer and Carrol neg. Mr. Jenifer and myself aff.

The fifth section giving the sole power of raising and appropriating money to the house of representatives expunged.

August 9.

6 and 7 sects. agreed to without amendment.

The 1 section of the V article underwent an emendatory alteration. The last clause-"each member shall have one vote"-opposed by Mr. Mason, Randolph and a few others on account of the Senate by the loss of the 5 sect of the IV article having the same powers over money bills as the house of representatives. -The whole however was agreed to.

Sect. 2. agreed to after an emendatory addition.

Sect. 3 agreed to after inserting inhabitant for resident, as being less equivocal, and 9 years for 4 years. (29)

Governeur Morris proposed insted of 4 years 14. He would have confined the members he said to natives-but for its appearance and the effects it might have against the system.

Mr. Mason had the same wishes, but he could not think of excluding those foreigners who had taken a part and borne with the country the dangers and burdenths [sic] of the war.

Mr. Maddison was against such an invidious distinction. The matter might be safely intrusted to the respective legislatures. Doctor Franklin was of the same opinion. Mr. Willson expressed himself feelingly on the same side. It might happen, he said, that he who had been thought worthy of being trusted with the framing of the Constitution, might be excluded from it. He had not been born in this country. He considered such exclusing as one of the most galling chains which the human mind could experience. It was wrong to deprive the government of the talents virtue and abilities of such foreigners as might chuse to remove to this country. The corrup[t] of other countries would not come here. Those who were tired in opposing such corruptions would be drawn hither, etc. etc.

Sect. 4 agreed to.

Article VI.

Sect. 1. Agreed to with this amendment insted of "but their provisions concerning them." (30)

adjourned

August 10.

Sect. 2. dissented to. Sects. 3. 4 5 and 6 agreed to. (31)

Augt. 11.

Sect. 7 agreed to after expunging the words "when it shall be acting in a legislative capacity" and inserting after the words "publish them" except such parts as in their judgement require secrecy.

After much debate (32) agreed to reconsider on monday the 5 sect. of the 4 article.

August 13.

The 2 sect. of the 4 article and the 3 sect. of the 5 article was reconsidered and lengthily debated. The 7 years however in the first and the 9 years in the latter remained and the articles stood as before reconsideration.

Sect. 10. altered, that the members of both branches be paid out of the treasury of the United States, their pay to be ascertained by law.

August 15.

Sect. 11. agreed to.

Sect. 12 postponed.

Sect. 13. Agreed to with the alteration of 3/4 of each house instead of two thirds.

16 Augt.

Agreed to Article VII from Sec: 1. to the paragraph "borrow money and emit bills on the credit of the united States inclusive, with the addition of the words "and post roads" and the omission of "and emit bills".

Mr. Martin appeared in convention.

August 17.

Agreed "to appoint a treasurer by joint Ballot; To constitute tribunals inferior to the supreme court; To make rules concerning captures on land and water;

expunged the next section and inserted

To define and punish piracies and felonies committed on the high seas;

To punish counterfeiting the securities and the current coin of the United States.

Struck out the clause "To subdue a rebellion etc.

Debated the difference between a power to declare war, and to make war-amended by substituting declare-adjourned without a question on the clause. (34)

Augt. 18.

To make war, to raise armies "to build and equip fleets amended to declare war, to raise and support armies, to provide and maintain fleets" to which was added "to make rules for the government and regulation of the land and naval forces.

The next clause postponed.

August 20.

The following one agreed to.

Sect. 2. Amended to read. Treason against the U. S. shall consist only in levying war against them, or in adhering to their enemies giving them aid and comfort. The legislature shall have power to declare the punishment of treason. No person shall be convicted of treason unless on confession in open court, or the testimony of two witnesses to the same overt act.

Mr. Mason (35) moved to add to the 1 sect of the VII article.

To make sumptuary laws.

Governeur Morris. sump. laws were calculated to continue great landed estates for ever in the same families. If men had no temptation to dispose of their money they would not sell their estates.

Negatived.

Amended section 3 by striking out the words in the second line white and other, and the word six in the 5 line and substituting the word three-but adjourned without a question on the section.

Augt. 21.

passed the 3 sect.

Took up 4 sect. adjourned, after passing the first clause to the word State 2 [d] line inclusive. (36)

August 22.

Committed the remainder of the 4 sect. with the 5 and 6.

The 4 sect promitting [permitting] the importation of Slaves gave rise to much desultory debate.

Every 5 slaves counted in representation as one elector without being equal in point of strength to one white inhabitant. This gave the slave States an advantage in representation over the others. The slaves were moreover exempt from duty on importation. They served to render the representation from such States aristocratical. (37)

It was replied-That the population or increase of slaves in Virginia exceeded their calls for their services-That a prohibition of Slaves into S. Carolina Georgia etc-would be a monopoly in their favor. These States could not do without Slaves. Virginia etc would make their own terms for such as they might sell. Such was the situation of the country that it could not exist without slaves-That they could confederate on no other condition. They had enjoyed the right of importing slaves when colonies. They enjoyed as States under the confederation. And if they could not enjoy it under the proposed government, they could not associate or make a part of it.

Several additions were reported by the committee.

Mr. Martin (38) shewed us some restrictory clauses drawn up for the VII article respecting commerce-which we agreed to bring forward.

Moved that the legislature should pass no ex post facto laws or bills of attainder.

G. Morris Willson Dr. Johnson etc thought the first an unnecessary guard as the principles of justice law et[c] were a perpetual bar to such. To say that the legis. shall not pass an ex post facto law is the same as to declare they shall not do a thing contrary to common sense-that they shall not cause that to be crime which is no crime.

Carried in the affirmative.

August 23.

7 sect. agreed to. (39)

On motion, on a proposition reported and amended agreed that "The legislature shall fulfil the engagements and discharge the debts of the U. S." To make the first clause in the VII article-Amended the first clause in the report of the said article by striking out the words, the legislature of the U. S. Added in the said article after the clause "to provide and maintain fleets":

To organize and discipline the militia and govern such part of them as may be employed in the service of the U. S. reserving to the States respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by the U. S."

Expunged in the VIII article the words the acts of the legislature of the U. S. and of this constitution, so as that the constitution and laws made in pursuance thereof etc should be the supreme laws of the several States.

The IX article being taken up, It was motioned that no treaty should be binding till it received the sanction of the legislature.

It was said (40) that a minister could not then be instructed by the Senate who were to appoint him, or if instructed there could be no certainty that the house of representatives would agree to confirm what he might agree to under these instructions.

To this it was answered (41) that all treaties which contravene a law of England or require a law to give them operation or effect are inconclusive till agreed to by the legislature of Great Britain.

Except in such cases the power of the King without the concurrence of the parliament conclusive.

Mr. Maddison. (42) the Kings power over treaties final and original except in granting subsidies or dismembering the empire. These required parliamentary acts.

Commiteed [sic].

Adjourned.

Augt. 24.

2 and 3 sect. struck out. The 10 article give rise to various debate. Amended to read that the election of the president of the U. S. be by joint ballot. It was moved to add each State having one vote-Conn: Jer. Mar. Georg. (43) ay. N. H. Mass. Penns. Vir. N. C. and S. C. no. It was moved that the president be elected by the people (44) 3 states affirm-7 neg.

On what respects his ineligibility Gov. Morris observed. That in the strength of the Executive would be found the strength of America. Ineligibility operates to weaken or destroy the constitution. The president will have no interest beyond his period of service. He will for peace and emolument to himself and friends agree to acts that will encrease the power and agrandize the bodies which elect him. The legislature will swallow up the whole powers of the constitution; but to do this effectually they must possess the Executive. This will lead them to tempt him, and the shortness of his reign will subject him to be tempted and overcome. The legislature has great and various appointments in their power. This will create them an extensive influence which may be so used as to put it out of the power of the Executive to prevent them from arriving at supremacy. On the other hand give the Executive a chance of being re-chosen and he will hold his prerogatives with all possible tenaciousness.

postponed the question.

Proceeded, and made some amendments to the 2 sect. Adjourned when the question was going to be put whether the legislature might enable the State Executives or legislatures to appoint officers to certain offices.

Augt. 25.

The clause in the 2 sect. X article, "he shall commission all the officers of the U. S. and shall appoint officers in all cases not otherwise provided for by this constitution, was moved to be amended by adding, except where by law the Executive of the several States shall have the power. Amendment negative[d]. Maryland divided-D. C. and J. against Martin and myself affirm. (45)

Moved several propositions (46) to restrict the legislature from giving any preference in duties, or from obliging duties to be collected in a manner injurious to any State, and from establishing new ports of entrance and clerance, unless neglected to be established by the States after application. Opposed by Massachusets. Mr. Gorahm [sic] said it might be very proper to oblige vessels, for example, to stop at Norfolk on account of the better collection of the revenue.

Mr. King thought it improper to deliberate long on such propositions but to take the sense of the house immediately upon them. (47)

I moved to have them committed to a committee consisting of a member from each State. Committed.

Proceeded a little further in the 2 sect.

Mr. C. Pinkney gave notice that he would move that the consent of 3/4 of the whole legislature be necessary to the enacting a law respecting the regulation of trade or the formation of a navigation act. (48)

Adjourned to monday.

Monday 27 Augt.

Amended the Presidential oath of office-made some other amendments-postponed what follows from the oath to the end.

Agreed to the 1. 2 and 3 sect. of the XI article with amendments.

Augt. 28.

4 Sect. amended. 5 sect. agreed to.

XII article amended by adding that no State shall emit bills of credit, nor make any thing but specie a tender in debts.

XIII amended so [th]at all duties laid by a State shall accrue to the use of the U. S.

Agt. 29

XIIII and XV agreed to (49) XVI. article committed.

Augt. 30.

XVII article debated by Maryland. Obtained an alteration so that the claim of the U. S. to the Crown lands or Western territory may be decided upon by the supreme judiciary.

XVIIII agreed to. (50)

Endeavoured to recall the house to the reported propositions from maryland, to prevent the U. S. from giving prefe[re]nces to one State above another or to the shipping of one State above another, in collecting or laying duties. The house averse to taking any thing up till this system is got through. (51) XXI. adjourned on this article.

Proposed to have a private conference with each other tomorrow before meeting of the convention to take measures for carrying our propositions, etc.

Augt. 31.

Filled up the blank in the XXI article with 9:8 States afirm: 3 Neg. Maryland moved to fill it up with 13 but stood alone on the question. G. W. was for 7.

Struck out for their approbation in the 22 Article. filled up the blank in the 23 article with 9, and amended the last clause by striking out choose the president of the U. S. and.

The system being thus far agreed to the restrictory propositions from Maryland (52) were taken up-and carried-against them N. Hamp. Massachus. (53) and S. Carolina.

Refered to a grand committee all the sections of the system under postponement and a report of a committee of 5 with several motions.

Adjourned.

Septmbr. 1.

Adjourned to let the committee sit.

Sepr. 3. and 4 Employed chiefly by the committee.

Agreed on report of the com. that the 1 clause of the 1 sect. of the 7 art. read vz.

"The legislature shall have power to lay and collect taxes duties imposts and excises, to pay the debts and provide for the common defence and general welfare of the U. S."

Also to add at the end of the 2 clause of the 1 sect of the 7 art. "and with the Indian tribes."

Took (54) up in the report "in the place of the 9 art. 1 sec. -"The senate of the U. S. shall have power to try all impeachments but no person shall be convicted without the concurrence of 2/3 of the members present. postponed.

The committee report in part as follows (55) . . .

After the words into the service of the U. S. in the 2 sect 10 art add "and may require the opinion in writing of the principal officer in each of the Executive departments upon any subject relating to the duties of their respective offices.

The latter part of the 2 sect. 10 art. to read "he shall be removed from his office on impeachment by the house of representatives and conviction by the Senate, for treason, or bribery, and in case of his removal as aforesaid, death absence resignation or inability to discharge the powers or duties of his office, the vice pres. shall exercise those powers and duties until another pres. be chosen or until the inability of the pres. be removed.

No provision in the above for a new election in case of the death or removal of the President.

Upon looking over the constitution it does not appear that the national legislature can erect light houses or clean out or preserve the navigation of harbours. This expence ought to be borne by commerce-of course by the general treasury into which all the revenue of commerce must come.

Is it proper to declare all the navigable waters or rivers and within the U. S. common high ways? Perhaps a power to restrain any State from demanding tribute from citizens of another State in such cases is comprehended in the power to regulate trade between State and State.

This to be further considered. A motion to be made on the light house etc. to-morrow.

Septr. 5.

The greatest part of the day spent in desultory conversation on that part of the report respecting the mode of chusing the President. Adjourned without coming to a conclusion.

Sepr. 6.

Spoke to Gov Morris Fitzimmons and Mr. Goram to insert a power in the confederation enabling the legislature to erect piers for protection of shipping in winter and to preserve the navigation of harbours. Mr. Gohram against. The other two gentlemen for it. Mr. Gov: [sic] thinks it may be done under the words of the 1 clause 1 sect 7 art. amended-"and provide for the common defence and general welfare. If this comprehends such a power, it goes to authorise the legisl. to grant exclusive privileges to trading companies etc.

Mr. Willson remarked on the report of the committee considered together That it presented to him a most dangerous appearance. He was not affraid of names- but he was of aristocracy. What was the amount of the report.

1. The Senate in certain events, (which by such management as may be expected would always happen-) is to chuse the President.

2. The Senate may make treaties and alliances.

3. They may appoint almost all officers.

4. May try impeachments.

Montesqu says, an officer is the officer of those who appoint him. This power may in a little time render the Senate independent of the people. The different branches should be independent of each other. They are combined and blended in the Senate. The Senate may exercise, the powers of legislation, and Executive and judicial powers. To make treaties legislative, to appoint officers Executive for the Executive has only the nomination, To try impeachments judicial. If this is not ARISTOCRACY I know not what it is.

Gov. Morris observed that the report had lessened not increased the powers of the Senate. That their powers were greater in the printed paper.

Col Hamilton. In general the choice will rest in the Senate-take this choice from them and the report is an improvement on the printed paper. In the printed paper a destroying monster is created. He is not re eligible, he will therefore consider his 7 years as 7 years of lawful plunder. Had he been made re eligible by the legislature, it would not have removed the evil, he would have purchased his re election. At present the people may make a choice-but hereafter it is probable the choice of a president would centre in the Senate. As the report stands-the President will use the power of nominating to attach the Senate to his interest. He will act by this means continually on their hopes till at length they will boeth [sic] act as one body. Let the election of the president be confined to electors, (56) and take from the Senate the power to try impeachments, and the report will be much preferable to the printed paper.

He does not agree with those persons who say they will vote against the report because they cannot get all parts of it to please them. He will take any system which promises to save America from the dangers with which she is threatened.

The report amended by placing the choice of the President in the house of representatives, each State having one vote.

Adjourned.

Sepr. 7.

Made some further progress in the report.

Mr. Mason (57) moved to postpone the section giving the President power to require the advice of the heads of the great departments to take up a motion-to appoint a council of State, to consist of 6 members-two from the Eastern, two from the middle and two from the Southern States-who should in conjunction with the President make all appointments and be an advisory body-to be elected by the legislature, to be in for 6 years with such succession as provided for the Senate.

3 States for postponing 8 against it-so it was lost.

Adjourned.

Septr. 8.

Agreed to the whole report with some amendments-and refered the printed paper etc to a committee of 5 to revise and place the several parts under their proper heads-with an instruction to bring in draught of a letter to Congres. (58)

Committee Gov. Morris

Maddison

Hamilton

Dr. Johnson King-

Maryland gave notice that she had a proposition of much importance to bring forward-but would delay it till Monday it being near the hour to adjourn. (59)

Monday Sepr. 10, 11 and 12.

Spent in attempts to amend several parts of the system. 12-amended the sect --------- art (60) from 3/4 to 2/3 , as it stood in the printed report at first.

13 Sepr.

Recd. read and compared the new printed report with the first printed amended report. Made some verbal alterations, and inserted the propositions moved by Maryland which had been overlooked.

14 Septr.

Moved by Dr. Franklin seconded by Mr. Willson, to empowe[r] Congress to open and establish canals. This being objected to-moved by Virginia To empower Congress to grant charters of incorporation in cases where the U. S. may require them and where the objects of them cannot be obtained by a State.

Negatived.

Moved To authorize Congress to establish an university to which and the honors and emoluments of which all persons may be admitted without any distinction of religion whatever. Congress enabled to erect such an institution in the place of the general government. Thus Congress to possess exclusive jurisdiction.

No State shall be prohibited from laying such duties of tonnage as may be sufficient for improving their harbors and keeping up lights, but all acts laying such duties shall be subject to the approbation or repeal of Congress.

Moved to amend it viz. No State without the consent of Congress shall lay a duty of tonnage. Carryed in the affirmative 6 ays 4 Noes, 1 divided.

Made several verbal amendment[s] in the progression on the system.

Added to the V article amended "No State without its consent shall be deprived of its equal suffrage in the Senate.

Mr. Mason moved in substance that no navigation act be passed without the concurrence of 2/3 of the members present in each house.

Negatived.

Mr. Randolp[h] moved that it be recommended to appoint a second convention with plenary powers to consider objections to the system and to conclude one binding upon the States.

Read the engrossed constitution. Altered the representation in the house of representatives from 40 to thirty thousand.

Dr. Franklin put a paper into Mr. Willsons hand to read containing his reasons for assenting to the constitution. It was plain, insinuating persuasive-and in any event of the system guarded the Doctors fame.

Mr. Randolp[h] Mr. Mason and Mr. Gerry declined signing. The other members signed.

Being (65) opposed to many parts of the system I make a remark why I signed it and mean to support it.

1s[t]ly I distrust my own judgement, especially as it is opposite to the opinion of a majority of gentlemen whose abilities and patriotism are of the first cast; and as I have had already frequent occasions to be convinced that I have not always judged right.

2dly Alterations may be obtained, it being provided that the concurrence of 2/3 of the Congress may at any time introduce them.

3dly Comparing the inconveniences and the evils which we labor under and may experience from the present confederation, and the little good we can expect from it-with the possible evils and probable benefits and advantages promised us by the new system, I am clear that I ought to give it all the support in my power.

Philada. 17 Sepr. 1787 JAMES MCHENRY.

Major Jackson Secry. to carry it to Congress. Injunction of secrecy taken off. Members to be provided with printed copies. adjourned sine die. Gentn. of Con. dined together at the City Tavern.

18-

A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy. A republic replied the Doctor if you can keep it. [(Foot-note by McHenry.) The lady here aluded to was Mrs. Powel of Philada.]

Mr. Martin (66) said one day in company with Mr. Jenifer speaking of the system before Convention.

I'll be hanged if ever the people of Maryland agree to it. I advise you said Mr. Jenifer to stay in Philadelphia lest you should be hanged. (67)

Notes:

2 McHenry's report of this opening speech of Randolph adds much to that which Randolph gave to Madison and which is printed in Gilpin, pp. 728-730, and elsewhere.

3 The text of the Virginia plan here presented is that which is designated as A in Jameson's "Studies in the History of the Federal Convention of 1787", Annual Report of the American Historical Association for 1902, I. 103-111. It is not necessary to reprint it.

4 The diarist ignores Charles Pinckney's plan.

5 These remarks of Hamilton have not been reported hitherto.

6 This resolution does not, like the other two, appear in the journal of the committee, but appears, with slightly different phraseology in both cases, in Madison's notes, Documentary History, III. 21, and in Yates, Secret Proceedings, ed. 1821, p. 98.

7 This speech does not appear elsewhere.

8 M. Henry probably copies this at this point in his notes for reference in connection with the preceding remarks as to the powers of the Convention.

9 These remarks of Randolph, and those of Dickinson which follow, seem not to be found in Madison"' or any of the other notes hitherto printed.

10 "in forming this Convention" (Journal).

11 King's remarks, and those of Madison which follow, seem not to appear in other records of the debates.

12 End of paper. Unfinished.

13 More correct than the journal. See Madison, Documentary History, III. 32.

17 The other members from Maryland. Mercer did not take his seat till this day.

18 Martin in the Maryland Journal says that he was absent five days. Ford, Essays on the Constitution, 341. Ellsworth ("Landholder") says ten. Ibid., 186. Martin replied, ibid., 346, that he set out for New York on August 7, and returned and took his seat in the Convention on Monday, August 13. But see post, August 16.

19 On the next page are two insertions, marked "N. B." and "+"; and places are indicated for their insertion.

20 See post, nos. III.-IX., and especially no. VIII.

21 Crossed out: "that I had my doubt whether the gentlemen had given themselves time to consider the effect of the propositions or the part we ought to take respecting them."

22 This is apparently McHenry's comment. What follows, from "Doctor Franklin" to "became slaves" is written on the opposite page of the manuscript, and marked to be inserted.

23 Crossed out: "This discription of men having a right of suffrage."

24 To the effect that money-bills should originate in the House of Representatives alone, and that the Senate should have no right to alter or amend them.

25 "No navigation act shall be passed without the assent of two thirds of the members present in each house."

26 Marginal note: "33,17 and 14,8."

27 As to ratification by nine states.

28 The word "feared" is substituted for a word erased.

29 The next three paragraphs marked for insertion. Written on preceding page.

30 The reference is to the substitution, for the words indicated, of the words "regulations in each of the foregoing cases," etc.

31 After amendment of sections 3 and 6.

32 Not much is reported by Madison, the only other reporter for this day.

33 This was done on August 11, according to the journal and Madison.

34 Not so the journal, Documentary History, I 130.

35 From "Mr. Mason" to "Negatived" inserted. Written on preceding page. The proper place for the insertion is however a paragraph earlier according to the journal and Madison. Ibid., 137, III. 567, 568.

36 I.e., "No tax or duty shall be laid by the Legislature on articles exported from any State."

37 These remarks cannot be identified with any individual speech in Madison's notes. What follows seems to be General C. C. Pinckney's statement. Documentary History, III. 587.

38 This paragraph is inserted from the preceding page.

39 After amendment.

40 By Mr. Gorham. Documentary History, III. 604.

41 By Dr. Wilson. Ibid.

42 Not in his notes. Ibid., 606.

48 And Delaware. Ibid., I. 233.

44 According to the journal and Madison, this second vote came first, and stood 2 to 9. Ibid., 151 152, 232, III. 609.

45 August 24, according to the journal and Madison, who says, Documentary History, III, 613, that it was negatived without a call of states, as also appears from the sheets of votes, ibid., I, 233.

46 Some of them by Dr. McHenry.

47 This is not in Madison.

48 This is not in Madison, who however reports Pinckney as proposing this on August 29, but with a two-thirds vote, not thre-fourths. Documentary History, III, 636.

49 August 28, according to the journal and Madison.

50 The eighteenth, nineteenth, and twentieth articles were all agreed to on this day.

51 This episode does not appear in Madison.

52 As to equality of the states in respect to federal regulation of commerce and navigation.

53 The vote of Massachusetts not given in the journal.

54 This paragraph inserted. Written on preceding page.

55 Here follows the familiar report of the committee of eleven on the mode of electing the President, to be found in all prints of the journal, and therefore omitted here. See Documentary History, I. 177-179, III, 668-670.

56 I.e., by a provision that the highest number of electoral votes may elect, even though not a majority.

57 The printed journal, ed. 1819, attributes this motion to Madison. The latter corrects this in his notes. Documentary History, III. 701.

58 This instruction appears in the journal under September 10, in a form requiring the preparation of an address to the people, to be laid before Congress.

59 Of this episode there appears to be no record elsewhere.

60 Section 13 of article VI. of the report of the Committee of Detail, dealing with the President's veto.